The majority of immigrants detained by the Department of Homeland Security are not permitted to challenge the legality of their detention. Only immigrants who are detained in very particular circumstances (those who have already been ordered deported or are subject to mandatory detention during removal proceedings) have some narrow avenues of legal recourse. The power of the government to detain the balance of people in immigration detention remains largely unchecked, thanks to post-9/11 fears and lobbying of the growing privatized incarceration system.
The Supreme Court declared, "Freedom from imprisonment – from government custody, detention or other forms of physical restraint – lies at the heart of the liberty that [the Constitution] protects," and yet US immigration laws permit routine incarceration of non-citizens with no review by an independent adjudicator, no independent oversight of detention facility management, and no enforceable standards pertaining to conditions or treatment of detainees. Furthermore, some would further erode the limited protections available to non-citizens in detention. In response, immigrant rights advocates have signed a letter urging Congress not to legislate away the few judicial remedies available to those held in mandatory, prolonged, or indefinite detention.
Immigration detention systematically violates the civil and human rights of detainees, who are often subject to mistreatment by guards, grossly deficient medical care, and improper use of solitary confinement. These inhumane conditions are unacceptable for any length of time, and those who spend extended periods in detention often suffer long-term physical and psychological injuries, such as high levels of depression, anxiety, and post-traumatic stress disorder. Additionally, immigrant detainees often have very limited access to family and the outside world. The majority of them do not have lawyers. While in detention, they can lose their jobs, homes, and custody of their children. Even if they eventually win their cases and are released from detention, there may be little to celebrate in the absence of family and stability, hard-earned but lost during prolonged detention.
The Constitution demands that no person shall be deprived of life, liberty, or freedom without due process of law, but as long as the US continues to rely primarily on detention to enforce immigration laws, we are disregarding one of our country's most sacred constitutional safeguards. Civil rights, community, and immigrant rights organizations are fighting to keep Congress from abolishing these limited protections. PHR urges Congress to respect the minimal – but vital – restraints the Supreme Court has placed on prolonged and indefinite detention. The lives of immigrants depend on it, and the Constitution requires it.